Arbitration Process Arbitrator G C Kabi 9830522004 gckabi@yahoo.co.in gckabi@gmail.com

Framing of Issues Expert Witnesses Interim Awards Final Awards Correction in Final Awards

What are issues A list of points that are in dispute & require determination Disputed law & fact

Types of issues Preliminary issues Substantive issues related to disputes

Is the Arbitrator obliged to frame issues? Should the Arbitrator frame issues? Party autonomy Arbitrator’s power Fairness and Efficiency Framing of Issues

Patel Engineering Co. Ltd. B T Patil & Sons MANU/MH/0351/2013 Sahyadri Earth Movers v L &T Finance Ltd MANU/MH/1550/2011 Gammon India Ltd v Sankaranarayana Construction Pvt. Ltd 2011(6)CTC 736 Framing of Issues

Gary Born: “Reduces the uncertainties in the trial process” Gary Born: “In connection with establishing a sensible Arbitral procedure, the Tribunal and parties must define the contested issues of law and fact, and devise an efficient, rational, means of presenting and deciding them” Gary Born: “Reduces the uncertainties in the trial process” Framing of Issues

Why & when issues should be framed To narrow down to relevant points Once statements of case submitted and written submissions underway & arbitrator and the parties have clarity

How issues to be framed Draft issues by parties Relevance of suggested issues Finalisation of issues by AT in consultation of parties Sequencing as per requirement framing issues

Expert Witnesses Evidence by means of contemporaneous documents Evidence by means of testimony of witnesses of facts Evidence by means of use of expert witnesses-opinion Expert witnesses

AT appointing experts Parties to present expert evidence Harmonization of Civil & Common Law procedure Expert Witnesses

Article 26 UNCITRAL Model Law 1985/2006 AT appointed experts: Article 26 UNCITRAL Model Law 1985/2006 S.26 A&C Act 1996 Institutional Rules UNCITRAL Arbitration Rules 2010 IBA guidelines on taking evidence Expert Witnesses

Expert Witnesses presented by the parties: UNCITRAL Model Law 1985/2006 A&C Act 1996 IBA Rules CIArb Protocol UNCITRAL Arbitration Rules 2010 Expert Witnesses

Issues in party appointed experts Independence/Credibility of experts Conflicting opinions Arbitrator- “the only objective player in the process” Competence of AT to arrive at right conclusion

Redfern and Hunter “One of the least satisfactory features of modern international arbitrations is the prevailing practice of presenting conflicting expert evidence of opinion on matters of great technical complexity. However well the advocates for the parties are able to test evidence of expert opinion presented by the other side through cross-examination, ‘how can the jury judge between two statements each founded on experience confessedly foreign in kind to their own?’” Expert Witnesses

Methodology Cross examination Witnesses conferencing Questioning by AT appointed expert Expert witnesses

Expert witnesses: Certain points Credibility of expert/specialized knowledge in the area relevant to dispute Report giving ammunition to opposite counsel Cross examiner preventing expert explaining his/her answer Compound questions in one exchange Preparation with retaining counsel Helping AT & counsel understand the case Are investigations well researched?

Contd. Findings of facts & methodology adopted? Has the expert travelled beyond the scope of reference & expertise Overuse of standardised language or use of absolute words: originality/exaggeration? Impeccable expert witnesses- strategy: getting relevant admission v destroying credibility PREPARATION by cross examiner Abusive questioning?

Interim awards S. 2. (1) (c) A&C Act : “arbitral award” includes an interim award S. 31. (6) (c) A&C Act : AT may at any time during the arbitral proceedings make an interim arbitral award on any matter w.r.to which it may make a final arbitral award Interim award v interim order

When interim awards should be made Issues that need to be decided early Issues that are mostly admitted Issues that can be decided separately- bifurcation: liability & quantum Benefit of costs and time? Architecting arbitration proceedings Competence of AT & Counsels? Interim Awards

Precautions Preliminary plus/liability plus decisions! not contemplated by parties Identifying the necessary factual matrix at early stage-the boundaries Amendments by parties Proceedings becoming longish Clarity between award & order: legal consequences in the jurisdiction Interim Awards

Final Awards Disposes all substantive issues Final & binding subject to available challenges Status of New York Convention awards for recognition & enforcement if challenged at seat/after annulment at the seat! Final Award

Form & Content In writing Reasons Date & Place of arbitration Majority signed- reason for omission of signature Reasons Date & Place of arbitration Duly stamped Signed copy shall be delivered to each party Final Award

Correction in Final Award Within 30 days of receipt of award: a party with notice to other party - computation error - typographical error any other error of similar nature With agreement of parties : interpretation Correction in final award

AT within 30 days on its own -except interpretation Party may request within 30 days: Additional award (omitted) S.31 shall apply Correction in final award

Conclusion Balancing party autonomy & efficiency of arbitration procedure – fairness the guiding principle Harmonisation of procedures in international commercial arbitration by use of standard guidelines (soft laws)- retaining flexibility based on circumstances in each case

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